High Court Strikes Reform Provisions

Tuesday, January 3, 2012 | 0

While I was out sick with the stomach flu the Oklahoma Supreme Court acted with surprising speed in surgically excising offending parts from that state's recent attempt at workers' compensation reform.

Striking provisions limiting service as independent medical examiners to medical doctors and doctors of osteopathy, the court said that the legislature had created a suspect special class without justification or a rational basis.

“We also find that there is neither a distinctive characteristic upon which this different treatment is reasonably founded nor one which furnishes a practical and real basis for discrimination between the groups within the classes. Therefore, the distinction becomes arbitrary and without relation to the subject matter,” Justice Douglas Combs wrote. Such different treatment violates the state Constitution, the majority concluded.

The court also eliminated provisions of the new statute that changed the standard for review of workers’ compensation claims from “a preponderance of the evidence” to “clear and convincing evidence.”

The opinion concluded that the Legislature was in violation of the separation of powers clause of the Oklahoma Constitution by providing that the Workers’ Compensation Court, in using the Official Disability Guidelines, must use the “clear and convincing evidence” standard (rather than “preponderance of the evidence") when making exceptions to the guidelines.

The plaintiffs in the suit alleged that the offending provisions were late changes to the reform bill, inserted at the last minute during the political process.

As SB 878 went through the committee process, the bill's language was such that all "physicians" could continue to serve as independent medical examiners, J. Dan Post of Tulsa, one of the chiropractors who brought the lawsuit, said. However, "at the last minute" a change was made in the bill's language which allowed only medical doctors (MDs) and doctors of osteopathy (DOs) to serve as independent medical examiners, Post said.

The other individual plaintiff, Oklahoma City chiropractor Brad Hayes, said that late language changes made to SB 878 caused the problem. The provision limiting testimony at Workers' Compensation Court hearings to medical doctors and orthopedists "doesn't make any sense," Hayes said. Hayes said he has served as an independent medical examiner “but it’s not a large part of my practice.”

In the meantime, 2012 is heating up as the grand experiment to take Texas-style non-subscription to Oklahoma, which may be the test state for what could be a trend if the experiment produces positive results.

WorkCompCentral subscribers may download the Oklahoma Supreme Court's decision by clicking the case title in the sidebar.

David J. DePaolo is founder, chief executive officer and editor-in-chief of WorkCompCentral.